We won’t belabor it, but we will quote from it. See below.
The full brief is here, filed this very afternoon in Cincy, Ohio:
…In light of the adverse consequences that arise when transgender individuals are deprived of access to medically necessary healthcare, many amici States have enacted laws and regulations to ensure that their residents, including transgender teenagers, have access to gender-affirming healthcare. These laws promote sound medical practices and increase equity in healthcare. Beyond these general protections, some amici States have issued explicit guidance prohibiting insurers from denying minors treatment for gender dysphoria solely based on age, in recognition of the importance of gender-affirming interventions for this vulnerable population. For instance, Oregon approved puberty suppression coverage for minors after considering “extensive testimony/debate from experts at various public meetings” and “relevant evidence and literature.” Washington explicitly allows coverage for puberty suppression and gender-affirming care for those under age twenty. Wash. Admin. Code §§ 182-531-1675(b)(ii), (f). Similarly, New York law requires coverage for medically necessary hormone therapy for individuals who are sixteen years of age and older. N.Y. Comp. Codes R. & Regs. tit. 18 § 505.2(l)(2)(i)–(ii).
In contrast to Tennessee and Kentucky’s categorical bans on gender affirming care for minors, amici States’ policies also recognize that best medical practices require an individualized assessment to determine whether — and to what extent — gender-affirming care is medically necessary for an individual patient. For example, the District of Columbia has instructed that determinations of “medical necessity” for insurance coverage purposes “must also be guided by providers in communication with individual patients.” Washington forbids insurers from “deny[ing] or limit[ing] coverage for gender affirming treatment” when it is “medically necessary” and “prescribed in accordance with accepted standards of care.” And California encourages health insurance companies to evaluate coverage criteria for gender-affirming care in order “to avoid needlessly delaying and interfering with medical care recommended by a patient’s doctor.” Taken together, these laws and policies reflect amici States’ core commitment to preserving the integrity of the medical profession, protecting the equality of all people, regardless of their gender identity, and ensuring that people with gender dysphoria are not denied medically necessary healthcare….
These bans cannot be understood as the mere regulation of medical procedures without regard for a patient’s sex. They prohibit certain procedures only when the treatment is sought by a teenager whose gender identity does not conform to the teenager’s sex at birth. These bans are therefore not equally applicable to all minors. Rather, they treat cisgender and transgender minors differently by permitting certain medications for the former while categorically banning the same medications for the latter. See, e.g., Ladapo, 2023 WL 3833848, at *9 (N.D. Fl. June 6, 2023) (explaining that to know whether prescribing puberty blockers is legal or illegal, “one must know whether the child is cisgender or transgender. The treatment is legal if the child is cisgender but illegal if the child is transgender because the statute prohibits [puberty blockers] only for transgender children, not for anyone else.”). It is beyond dispute that one group — and only one group seeks this medical treatment for this purpose: transgender teenagers. See Skrmetti, 2023 WL 4232308, at *11 n.18 (SB 1’s prohibitions “are directly and exclusively targeted at minors who are transgender.”); see also Thornbury, 2023 WL 4230481, at *4 (“Regardless of its stated purpose, then, SB 150 would have the effect of enforcing gender conformity.”). That discriminates against transgender individuals and constitutes discrimination on the basis of sex.
The district courts’ equal protection analysis is consistent with the Supreme Court’s decision in Bostock v. Clayton County. The high court explained that, in the context of a Title VII claim, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton Cnty., Georgia, 140 S.Ct. 1731, 1741 (2020). In other words, “if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.” Id. Here, a similar analysis reveals that the challenged laws also impose differential treatment on the basis of sex: changing the minor’s sex at birth yields a different result on whether a medication is authorized….
Now you know. Tennessee will… lose. Out.
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